Jack Townsend offers this blog on Federal Tax Crimes principally for tax professionals and tax students. It is not directed to lay readers -- such as persons who are potentially subject to U.S. civil and criminal tax or related consequences. LAY READERS SHOULD READ THE PAGE IN THE RIGHT HAND COLUMN TITLE "INTENDED AUDIENCE FOR BLOG; CAUTIONARY NOTE TO LAY READERS." Thank you.

Thursday, February 6, 2014

Another Swiss Bank Enabler Indicted in SDNY (2/6/14; 2/10/14)

I have just been provided documents related to the indictment today of another Swiss bank enabler, one Peter Amrein of Switzerland, a former bank client advisor and independent asset manager working with Swiss banks. The USAO SDNY press release is here. The indictment is here. And, after analyzing the documents, Here are the key excerpts from the press release.

AMREIN worked as a client adviser at a Swiss bank (“Swiss Bank No. 3) and, later, as an asset manager at a Swiss asset management firm (the “Swiss Asset Management Firm”). In those roles, between 1998 and 2012, AMREIN helped U.S. taxpayers evade taxes and hide millions of dollars in undeclared accounts at various Swiss banks, including, among others, Wegelin & Co. (“Wegelin”), which previously pled guilty in Manhattan federal court for conspiring with U.S. taxpayers to evade taxes.

In 1998, AMREIN began to work with Edgar Paltzer, a Zurich-based attorney, in the management of undeclared accounts for a number of U.S. taxpayers (collectively, the “Amrein/Paltzer Clients”). Paltzer has previously pled guilty in the Southern District of New York to conspiring to help U.S. taxpayers evade taxes. AMREIN requested that Paltzer establish sham foundations, organized under the laws of non-U.S. countries, such as Liechtenstein, so that the assets of the Amrein/Paltzer Clients could be maintained in accounts held in the names of these foreign foundations rather than in the names of the clients themselves. AMREIN made this request in order to help clients conceal their ownership of these undeclared accounts from the IRS.

In 2006, AMREIN left his position as a client adviser at Swiss Bank No. 3, and began to work as an asset manager at the Swiss Asset Management Firm. When AMREIN left Swiss Bank No. 3, he transferred the undeclared accounts of the Amrein/Paltzer Clients to another Swiss bank (“Swiss Bank No. 4”). At Swiss Bank No. 4, the accounts continued to be held in the names of the sham foundations created by Paltzer, and continued to be hidden from the IRS.

In 2008, it became publicly known that UBS AG (“UBS”) was being investigated by United States law enforcement for helping U.S. taxpayers maintain undeclared accounts. Because of the investigation of UBS, Swiss Bank No. 4 informed AMREIN that it was going to close the undeclared accounts of the Amrein/Paltzer Clients. In order to assist his clients in continuing to maintain undeclared accounts, AMREIN searched for and found another bank in Switzerland (“Swiss Bank No. 1”) that would maintain undeclared accounts of the Amrein/Paltzer Clients. Thereafter, in 2009, AMREIN opened undeclared accounts for the Amrein/Paltzer Clients at Swiss Bank No. 1 in the name of sham foundations and transferred his clients’ assets from Swiss Bank No. 4 to these accounts at Swiss Bank No. 1. For some of these clients,

AMREIN, with Paltzer’s assistance, helped send funds back to the United States and to other foreign jurisdictions in ways that were designed to prevent U.S. authorities from discovering the existence of the clients’ undeclared accounts. For instance, AMREIN and Paltzer instructed a client adviser at Swiss Bank No. 1 to empty one of the accounts by sending checks in amounts smaller than $9,900 to the beneficial owner of the account, i.e., the U.S. taxpayer. On another occasion, AMREIN and Paltzer instructed the same client adviser to transfer the balance of one of the accounts, which was then valued at over $2.4 million, to another account controlled by the U.S. taxpayer in Belize City, Belize.

* * *

AMREIN, 52, a Swiss citizen, resides in Switzerland and has not been arrested.

AMREIN is charged with one count of conspiracy to defraud the United States and the IRS, and faces a maximum sentence of five years in prison, a maximum term of three years of supervised release, and a fine of the greatest of $250,000, twice the gross pecuniary gain derived from the offense, or twice the gross pecuniary loss to the victims.

Key Features:

Defendant: Pete Amrein
Role: Enabler: Client Advisor with Swiss Bank No. 3; Asset Manager with Swiss Asset Management FirmCharge: Conspiracy (1 count).Banks: Swiss Bank No. 3; Wegelin & Co.; Swiss Bank No. 1, Swiss Bank No. 2, and Swiss Bank No. 3. (I will try to identify the Swiss banks as they become known to me.Related Defendant: Edgar Paltzer, a Swiss lawyer, previously indicted, who will likely be a principal witness against Amrein. For blogs on Paltzer, see here.Co-Conspirators: "various U.S. taxpayers"The Conspiracy: to "hide the U.S. taxpayers' Swiss bank accounts, and the income generated in those accounts" from the IRS via "false and fraudulent federal income tax returns.Manner and Means: The usual skulduggery, but on steroids: undeclared Swiss accounts, intervening sham foundations and other entities; travel to U.S. to service the taxpayers / co-conspirators; after the UBS proceedings, helped U.S. clients locate other Swiss banks that would hold undeclared accounts; conversations with high ranking bank executives, etc.

JAT Comments:

According to my statistics (updatated spreadsheet will be posted this week), there have been 132 indictments -- 96 taxpayers and 36 enablers.

As I say, this seems to be Swiss enabler conduct on steroids. Not all Swiss enablers were this active and many of them were relatively passive, so are not likely to be at risk of criminal prosecution. But, I am sure that there are a lot more of the active enablers such as Amrein and Paltzer that the Government can add to its trophies.

31 comments:

These are fact intensive issues that invite a lot of questions. But just on what you have presented, there is a good possibility -- emphasis possibility only -- that your approach is a good one. If you want any more comfort than possibility, you really need to engage a practitioner. I list practitioners that I believe to be good and practice in this are in the upper right hand of this blog.

I have seen online the term "qualified quiet disclosure" as being an alternative to OVDP and yet "blessed" by the IRS. This from Attorney Steve Moskowitz:

"Taxpayers whose circumstances do not show willful or reckless intent may find better outcomes opting to report through means other than the Offshore Voluntary Disclosure Program. One of the other options is the Qualified Quiet Disclosure. It is important to note that the Qualified Quiet Disclosure is not the same as a “quiet disclosure”; and the IRS has warned that they will pursue and punish individuals making “quiet disclosures”. For those that qualify, the Qualified Quiet Disclosure offers the same forgiveness as the OVDP without being forced to admit intent to evade taxes, without giving up Constitutional rights, and without heavy penalties. Because the Qualified Quiet Disclosure allows individuals act outside of OVDP restrictions, a taxpayer utilizing this approach is free to contest offshore penalties either administratively and/or judicially."

Am I missing something or is this just the same as as a garden-variety opt-out?

There was another post somewhere on your blog that accused tax attorneys of advocating an opt-out rather than a traditional voluntary disclosure. I'm not sure in what way a voluntary disclosure differs from a quiet disclosure or a qualified quiet disclosure. Maybe they all refer to the same process of sending in amended returns with a reasonable cause letter. Not something I feel comfortable with after the GAO report. I'd rather fill out a few more forms and go through the OVDP-out-out route and ensure that the disclosure is not a ticking timebomb.

I am not a practitioner. I would suggest taking a hard look as to whether or not to join OVDI or to consider forward compliance on FBARs and quietly amending 2012. Lots of facts would go into this including size of accounts and amount of income, and what the high balance was over the 8-year period in dollars (because of loss of value in the rupee the current balance may be much less than the highest balance.) Also, whether the other two siblings are US persons is important since having one sibling choose OVDI and another forward compliance might be risky. I have heard anecdotally from my CPA of agents excluding accounts in similar situations but I have also heard of agents taking a hard line and not doing so; in other words there seems to be a lot of subjectivity on the part of what the agents do. Finally, if the other two siblings are not US persons, there is a risk of your client getting 33.3% of the balance but having to pay a 27.5% penalty of the high balance, so he gets nothing or there is a family rift when the other two siblings are expected to contribute to a fine imposed by a country they have no relationship with.On a policy level, here is someone risking punishment for doing the right thing. If he had intended to do the wrong thing he could have left his name off the accounts and had his money held by a non-US family member. IRS are you listening?

Thank you for this "know-how" on invoking treaty provisions. I will bring it to the attention of the accountant who is supposed to be preparing the amended returns (although I seem to be doing all the work at the moment...). I share your skepticism about attorney & accountant involvement (Bermuda triangle!), but when the accountant asked me, "What is your strategy?", and I had been reading the horror scenarios in the IRS's FAQs, I figured I need an attorney to advise as to strategy. Turns out I paid $500 to get an overview of the 4 options that I already knew about from my on-line research. And the attorney--who was supposed to be looking into the pension stuff--has gone silent since then. I could probably do without the accountant, but I'm scared that I'll mess something up (again)--there are simply too many forms to keep track of. Like reporting the small inheritance my husband received a couple of years ago....another oops. So we will amend and hope for the best, since we are truly small fish and hopefully the IRS will be happy we are trying to do the right thing.

I had one law firm (our local "tax boutique" quote incredibly high prices--$5,000 just for an initial evaluation! Another firm told me it could never tell me not to enter OVDP. Luckily, I had done enough research to know there were options and kept calling until I found a firm that seemed more reasonable (only $500 for a strategy consultation) and could see we are not OVDP's candidates. Having said that, I really gained no more information for my $500 than I had found out reading information like this blog, IRS website, etc. (except that fact that we should also have filed an inheritance form), and based on the fact that my calls are going unanswered, I don't expect to get much more for my money...

Another question--Do you think the Cassa Forense should be included on FATCA? Clearly it is a pension for purpose of the Treaty, but does that mean it can be exempted from Form 8938 per the Instructions as "an interest in a social security, social insurance, or other similar program of a foreign government"? The problem I see is that the Cassa is not the government per se, but a private entity tasked with running the pension (subject to supervision by the Ministry of Labor). The accountants/attorney tell us the conservative approach is to simply report it, but actually we might fall under the threshold without it. If we do report the Cassa, it is unclear what "Type" it should be, since it doesn't fit into the partnership/corporation/trust/entity options.

the conservative approach always works..... it would not be mine in this case but this is a personal preference and depends on your risk tolerance.The treaty position I described earlier works just fine for all non-US qualified deferral pension plans (in your case a not US qualified plan) ... government, private (employer) etc - it does not matter.Contributions (employer and government) for both pensions Cassa Forense & Fondi Pensione should be included in Form 8833. Many foreign pension plans do not have a classification a.k.a account number - just the name - no need to include in Form 8938.If account number than I would include it if you have an account statement to proof balance and/or yearly growth) etc. Same process for FBARs. In case later on your examiner would disagree with your position :1. Business Care and Prudence (IRM. 20.1.1.3.2.2) : A taxpayer may establish reasonable cause by providing facts and circumstances showing that the taxpayer exercised ordinary business care and prudence, but nevertheless was unable to comply with the law .2. Honest Misunderstanding (IRM .20.1.1.3.2.2.3) : A taxpayer`s misunderstanding of fact or law may constitute reasonable cause and good faith include an honest misunderstanding of fact or law that is reasonable in light of all of the facts and circumstances, including the experience, knowledge, and education of the taxpayer.

3. Ignorance of the law (IRM. 20.1.1.3.2.2.6) : There are currently 7332 pages of instructions, 16 IRS publications, and 667 pages of tax forms that are applicable to overseas US. Citizens. A taxpayer`s ignorance of the law may give rise to reasonable cause. The IRS Penalty Handbook acknowledges that in some instances taxpayers may not be aware of specific obligations to file and / or pay taxes. It further acknowledges that reasonable cause "may be established if the taxpayer shows ignorance of the law in conjunction with other facts and circumstances", such as the level of complexity of a tax or compliance issue. The IRS Penalty Handbook also recognizes that a taxpayer may have reasonable cause for non-compliance if the taxpayer was unaware of a requirement and could not reasonably be expected to know the requirement. Now the conservative approach :1. File FBARs for both pensions Cassa Forense & Fondi Pensione 2. Include both pensions (custodial) in Form 8938 3. File Form 3520 or 3520-A4. Form 1040 : Include yearly growth of both pension plans as income

1. Do some research if you would feel comfortable with a QD or GF strategy (with the help of a CPA).2. Make a penalty analysis - NW 3. for how many years are you not tax compliant ?4. Inheritance (I assume from Italy) < $50K ?

I prefer the treaty approach. For one thing, we don't get any statement of yearly growth, so I wouldn't even know what income to report on 1040 (under conservative approach). But if we invoke the treaty for Cassa & Fondi, should we STILL report both on FBAR and Form 8938 to avoid running afoul of those reporting rules? My accountant is now telling me he doesn't have the treaty expertise to sort this out, and I'll need to retain the law firm (which also doesn't have a clue, but may charge me $450/hr to start from scratch learning about it)...help! I feel like there is no way to fix this situation! Is there not an accountant/attorney who ALREADY knows this stuff and can just fill out the forms? And help down the road when pension distributions begin? No to mention the eventual estate tax issues when my husband and/or I die!

Hi Jack and all,I've been reading this incredible blog for weeks (since I've found out about the FBAR / OVDI). And it has made me change my mind between OVDI and QD many many times. Probably every time I read it, I change my mind. So much so, that I decided to create a post.

One situation that I don't find anything on the internet is FBAR / OVDI for immigrants. People like me that had a "life" before coming to US, then 'climbed the ladder' to a US Citizenship.

In my case, I had 2 bank accounts opened years before even considering moving to US (I closed one when I was already here and still have one open) and a real estate that was paid off that I've been renting since.

As many non-native English speakers, I didn't / don't have enough language knowledge to understand the legal and tax requirements and laws, so I didn't know I had to include my foreign income (rent) from my foreign real estate and my bank accounts investments and disclose the accounts on FBAR or Form 8938. Until 2 months ago when I friend mentioned it because he was also facing the dilemma.

As I mentioned above I'm going back-and-forth on Quiet Disclosure, Go-forward or OVDI.Can someone shed a light on some experiences on cases like mine?

Some facts:- 2 years on working visa, 5 years with Greencard (resident alien)- accounts opened before immigration and balance never above 160k total while living in US.- net rental income (after local tax) topped at $18000/year- real estate FMV, due to booming economy ($600k)- all funds in foreign accounts were earned at that country.- never send money from US nor brought any money to US.

So far OVDI looks complicated, stressful, painful and expensive (specially because of my real estate FMV) whereas, QD looks simpler but risky - and stressful (with the chance of getting caught over my head for years to come).

I am sorry, but I can't give you legal advice over the internet. I can point out things to keep in mind and suspect that you are already factoring them in.

If the do a QD, a GF or an OVDP opt out, the worst that can happen is an audit (certain in case of OVDP opt out (although audit light) and not certain in case of QD or GF. In an audit, you would owe income tax only for years otherwise open (you need to pay attention to the years that are open). In a QD and OVDP opt out, your returns should be treated as qualified amended returns, so no accuracy related penalty and, unless there are bad facts not included in your short narration, there will be no civil fraud penalty.

As to the FBAR penalty, only the financial account is included. The real estate is not included in an FBAR audit (note that it is included in the OVDP in lieu of / miscellaneous penalty calculation.

I agree you might be a candidate for a QD or GF rather than OVDP. I stress might. There is not certain test of which decision to make. It is a judgment call and, I believe, a judgment call that should be made in the context of more facts and nuance that you offer above. I recommend that you talk to an attorney. You will note in the upper right hand corner of this blog a number of attorneys around the country who have indicated a willingness to represent clients. I suggest that you engage an attorney for just the minimum time they require to give them such facts and nuance and will permit that attorney to help you make the right judgment call.

I understand and accept that I may have made a mistake for not knowing all this and I'm willing to pay the taxes that I haven't. I think it's fair.But at the same time, I don't think is fair to have these harsh FBAR penalties or, even worse, to pay the 27.5% over my real estate FMV! Not only because it was paid by money earned while I wasn't in the US, but there's no IRS requirement to disclose them (which I would do it, if required).

In a QD situation, would I have to amend 3 years of tax returns or 6 years (FBAR sol is 6 years, I believe)? Also, this would probably raise the flag even more, since the FBAR disclosure for past years need to be filed electronically these days, right?

My concern on getting audited for a GF is being interpreted as "willful" non-compliance on FBAR and foreign income and get higher penalties and criminal charges on top of it. Can you comment if this assumption is accurate?

In a QD situation, you have identified the key statutes of limitation. Accordingly, you could file 3 years of income tax returns (unless you are subject to the 6-year exception, in which case you should consider filing 6 years) and, regardless of which statute of limitations applies for income tax, either 6 or 3 years of FBARs or some in between. That is a judgment call requiring consideration of nuance. You should consult with a professional.

Electronic filing of delinquent FBARs is required. I haven't dealt with this recently. I don't know whether the disclosure required explaining the reason for late filing (a plea for good cause or mercy) can now be included with the electronic filing or must be prepared and kept to be made available to the IRS on request.

The mere action of doing a GF should not on its own infuse willfulness into the conduct that occurred in past years. Technically, the conduct punished by the FBAR penalty is the conduct that occurred on 6/30 (end of day) without filing the FBAR and the inquiry then is, essentially, what did you know (or in the case of willful blindness, what should you have known). What you do after each of those 6/30 is poor evidence of what you knew then (except perhaps your testimony that you knew of the obligation on each 6/30). But, merely complying with the law from this day forward is not an admission that you knew the law earlier.

@JRA, I am late to discovering about this matter. I am interested in any update you have on your case. As a GCH I had been sending money overseas over the years to support my family. I am interested in any CPA/attorney references you have to offer.Thank you!SSD

UStax, I am obviously late to learn about all this and discovering how much of a mess I am in. I had been sending money overseas to help my parents over the years. That has accumulated over the years to about $360K in about 20 different CDs (in 4 different Indian banks) over the course of 15-20 years since I came to the US. May be 5 years ago my dad suggested I open a mutual fund account instead of having new CDs. So I opened a MF account and funded another $70K in that account . So my current asset there is about $430K. All this is money from my saving after paying tax in the US.

I have done my taxes myself (Turbotax) all these years and failed to understand the interest on the CDs should have been reported.

I have been a W2 employee all these years and had used only standard deduction until 3 years ago. If IRS were to audit I have nothing to hide. So I am inclined to go QD or GF but worry that size of the asset is a reason to go OVDP.

Any opinions? QD? GF? or OVDP?

Reading your posts have been so educational. Thank you taking the time to explain.

Jack, On the GF versus QD question, as Marc ForTax wondered, in GF won't non-filing FBAR for past years appear willful? IRS could argue now I know I should file FBAR for this year, why did I not file to file for past years as well?

The IRS system should be able to identify immediately a 1st time FBAR filer. The question is what the IRS will do with that information if it does have that simple algorithm built into its system. The possible IRS responses are several, including doing nothing in all except large dollar matters (say $500,000 aggregate), sending a letter to all 1st time filers asking if they were required to file in past years, auditing all 1st time filers, etc.

The question I think you are asking is whether, the fact of filing the current FBAR, is proof of penalizable conduct for the earlier years. Technically, the answer is no. The issue in the FBAR penalty is the nonfiler's state of mind on each 6/30 as the filing deadline expires. His or her compliance in a later is not proof of what he or she knew on the critical filing deadline date. So legally, the later filing is irrelevant. Of course, an earlier filing could be relevant as to the filer's knowledge of the filing requirement. But here we are talking about a later filing.

Could the IRS conduct an examination punitively if the taxpayer makes a current GF filing without correcting the past? Certainly, the IRS has the power to conduct audits punitively for whatever reason it wants to, but fortunately the IRS rarely exercises that power.

- In case of an audit, won't the examiner see a QD (i.e amending past return plus filing past FBAR ) as the taxpayer being more compliant and co-operative. Compared to GF, a taxpayer choosing QD it seems would have a better narrative i.e. he did the right thing as soon as he found out and paid all past tax dues plus became more compliant with past FBARs. So, between QD and GF, is GF ever a better choice?

- If a taxpayer has absolutely nothing to hide and is completely open to an audit, would the amount of assets (e.g. approx $400K in 5 different accounts) by itself be a reason to go OVDP instead of GF/QD?

We had to make the decision whether to renounce the green card, enter OVDP, amend past years, or just fix it going forward. The first two options were not acceptable. I would have preferred to amend the past years, but there were some issues that could not be "fixed". So we decided to simply move forward. I did hire an accountant to do the return right, and I'm glad I did because there were even some nuances on the Form 1116 that I was not aware of. And there is no way I could have done the PFIC reporting on my own. Still, there have been issues that accountant did not know (especially with foreign pensions), which I had to follow up on (and advise) based on my own research. We have an attorney lined up to assist if we receive an IRS notice. In my experience, the majority of attorneys will recommend you to enter the OVDP; a minority will outline the general risks and maybe even state (orally) that the case is not an OVDP candidate; a few will request fees or deposits of $10,000-$15,000 just to evaluate the case! You will not receive a written opinion, nor a real evaluation of the specific facts of your case (unless you pay the upfront fees). Bottom line--you must do as much research and reading on your own as you can tolerate, print out documents to back up your understanding of things (especially your country's tax treaties, any technical explanations, etc), and try to decide WHAT your strategy will be. Then call different law firms and accountant firms until you find someone that is willing to agree your approach and who you believe you are able to work with. If you want my specific attorney and accountant reference, I suppose I can share although they may not be convenient to where you are located:

1. No one knows the answer to this. At one level, it would be logical to treat QDs better than GFs in case of audit. And, at another level, it would be logical to treat OVDP opt outs better than QDs and GFs. Yet, all we have heard from the IRS is that all will be subject to the audit result, with no indication that the audit result will be better for any of them.

2. Answering both a and b, neither of those in itself is a reason to go into OVDP or QD or GF. Assessing those choices requires consideration of a host of factors and a lot of judgment. Keep in mind, as I constantly repeat, the only certain you can get it to join OVDP and not opt out. The other choices involve risks that can be assessed only in the context of the detailed facts and a client's risk tolerance.

Jack, I don't know how easily the iRS could currently identify a first ime FBAR filing. In the past however it apparently would have not been easy since FBAR filings go to Treasury and the only way the iRS would have known about FBAR would have been to 1) have a reason to query Treasury in Detroit then 2) actually query. I am basing this on what's been reported publicly. It would be much easier for the IRS to spot those answering YES at the bottom of Sch. B for the first time, or those filing 8938 for the first time in future years.

To Marc Fortax, before I entered OVDI i wish I had spoken to two different lawyers not just one. Some (maybe many) see OVDI as the answer for everybody. Suggest you contact someone such as Jack who does not believe OVDI is for everyone.

Even without 50% of the regular audit, I think that being able to have the case reviewed without having to opt out (as was the case with the first program, I belive it was FAQ 35 but it may have been a better number) would be an improvement. Those in OVDI should be able to present individual facts without the Damocles Sword of 300% penalties scaring them from opting out.

I believe the FBAR filings are actually entered into an IRS operated computer system. In recent years, FBARs have requiired efiling, so they still go to the same IRS center in Detroit. So the IRS does have electronic access to FBAR documents.

The IRS administers the FBAR filings pursuant to an agreement between the IRS and Treasury. So, in that administration, it would be easy for the computer to file a first time filer (or even a not recent filer) for purposes of determining whether to do an FBAR audit. Now, when it is or gets combined with an income tax audit, I think there are some extra internal steps that must be covered because of Section 6103.

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